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The Constitutionality of Congressional Regulation of the President's Wartime Detention Policies, 2011 BYU L BYU Law Review Volume 2011 | Issue 6 Article 12 12-18-2011 Challenging the Executive: The onsC titutionality of Congressional Regulation of the President's Wartime Detention Policies William M. Hains Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Military, War, and Peace Commons Recommended Citation William M. Hains, Challenging the Executive: The Constitutionality of Congressional Regulation of the President's Wartime Detention Policies, 2011 BYU L. Rev. 2283 (2011). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2011/iss6/12 This Comment is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. DO NOT DELETE 12/20/2011 3:44 PM Challenging the Executive: The Constitutionality of Congressional Regulation of the President’s Wartime Detention Policies I. INTRODUCTION The war on terrorism has involved several clashes on the political home front, with the President and Congress asserting conflicting policies. A recent example is Congress’s effort to deny funding to transfer detainees from Guantánamo Bay to the United States for prosecution and to place strict, almost impossible conditions on the President’s use of funds to release or transfer detainees to other countries. In the study of national security law, especially during the war on terrorism, “the lion’s share of academic attention” has focused on the scenario reflected in Justice Jackson’s Youngstown Category II analysis, which examines the President’s inherent authority to act in the absence of congressional authorization.1 Yet Youngstown Category III scenarios, where presidential action conflicts with congressional authorization, are “now at the forefront of the most important clashes between the political branches” and deserve more careful attention.2 Most studies using the Youngstown framework focus on the scope of presidential power—either in absence or in contravention of congressional authorization.3 However, the Youngstown framework is also relevant to a crucial correlative question: When are congressionally imposed restrictions on the 1. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 693 (2008) [hereinafter Barron & Lederman, Framing the Problem]; see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring) (devising three categories with which to analyze the scope of presidential foreign affairs power). 2. Barron & Lederman, Framing the Problem, supra note 1, at 693. 3. See, e.g., Patricia L. Bellia, Executive Power in Youngstown’s Shadows, 19 CONST. COMMENT. 87, 124–45 (2002) (arguing that courts and scholars improperly focus on interpreting congressional intent when the real issue is constitutional interpretation of the President’s powers). There are, of course, exceptions to this approach. See generally, e.g., David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 HARV. L. REV. 941 (2008) [hereinafter, Barron & Lederman, A Constitutional History] (analyzing the history of congressional involvement in war to determine the scope of presidential war powers). 2283 DO NOT DELETE 12/20/2011 3:44 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2011 President unconstitutional? This question arises regardless of whether the President eventually acts in contravention of the will of Congress. Louis Fisher has warned that “[t]he precise jurisdictions and fields of operation for Congress and the President will always elude us.”4 Regardless of the difficulty in reaching an ultimate conclusion, a comprehensive framework is necessary for evaluating the scope of Congress’s constitutional authority when Congress seeks to limit the President’s wartime or foreign affairs authority. This Comment argues that Congress may constitutionally constrain the President as long as the legislative action does not violate a mandatory provision or express restriction of the Constitution and does not impede on an exclusive presidential power. Therefore, an appropriate analytical framework should involve the following considerations: (1) mandatory provisions of the Constitution; (2) express restrictions on the authority of Congress or the federal government; (3) the scope of the relevant constitutional grants of power for each branch; and (4) whether a particular power is exclusively lodged in one branch. As the following discussion will suggest, the constitutionality of a particular restriction is a highly contextual analysis that depends on the specific powers in question. This Comment argues that under this framework, the recent restrictions on the President’s authority to prosecute detainees and the restrictions on the transfer of detainees to other countries are constitutional. This Comment will proceed as follows: Part II will present the problem of the conflicting presidential and congressional policies regarding Guantánamo Bay. Part III will present a framework for analyzing the constitutionality of congressional restrictions. Part IV will apply this framework by looking at the constitutional sources and scope of presidential and congressional authority over wartime detention and foreign negotiations. Part V will conclude. II. PRESIDENTIAL & CONGRESSIONAL GUANTÁNAMO BAY POLICY President Obama faces growing congressional resistance to his detention policies. A brief discussion of the political climate sets the stage for a discussion of the most recent restrictions Congress has placed on the President. 4. LOUIS FISHER, CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS AND THE PRESIDENT 291 (5th ed. rev. 2007) [hereinafter FISHER, CONSTITUTIONAL CONFLICTS]. 2284 DO NOT DELETE 12/20/2011 3:44 PM 2283 Challenging the Executive A. Political Climate While campaigning for the presidency, Barack Obama promised that, once in office, he would close the detention facilities at Guantánamo Bay, Cuba.5 The Bush Administration had used the detention center to hold suspected terrorists away from the battlefield but outside the reach of the United States judicial system.6 That policy brought strong criticism by political opponents and international observers.7 Within days of taking office, President Obama declared that he would close the facility within one year, by January 22, 2010.8 Although the closure of Guantánamo Bay is the hallmark of President Obama’s detention policy, other aspects of the policy include reassessment of the basis for detention of each detainee, possible release or relocation, trial by military commission, and, for a select few, prosecution in federal court.9 These plans have faced several hurdles—including significant public opposition to relocating detainees to the United States—that have prevented the Administration from reaching its goal of closing Guantánamo.10 In response to the public outcry, Congress cut off funds for the release or transfer of Guantánamo Bay detainees into the United States. Congress placed funding restrictions in six separate laws in 2009 and 2010.11 Each law made exceptions that allowed the 5. See, e.g., Steven Lee Myers, Bush Decides to Keep Guantánamo Open, N.Y. TIMES, Oct. 21, 2008, at A16 (contrasting the position of President Bush on Guantánamo Bay with the positions of presidential candidates Sen. Barack Obama and Sen. John McCain), available at http://tinyurl.com/NYTimesGitmo. 6. MICHAEL JOHN GARCIA ET AL., CONG. RESEARCH SERV., R40139, CLOSING THE GUANTANAMO DETENTION CENTER: LEGAL ISSUES 2 (Mar. 28, 2011). 7. See, e.g., Warren Hoge, Investigators for U.N. Urge U.S. to Close Guantánamo, N.Y. TIMES, Feb. 17, 2006, at A6, available at http://www.nytimes.com/2006/02/17/ international/17nations.html?ref=guantanamobaynavalbasecuba. 8. GARCIA ET AL., supra note 6, at 3; Exec. Order No. 13492, 3 C.F.R. 203, 205 (2009). 9. Exec. Order No. 13492, 3 C.F.R. 205–06. 10. According to one poll, seventy-four percent of respondents opposed relocating Guantánamo Bay detainees to prisons in the respondents’ home states. Jeffrey M. Jones, Americans Oppose Closing Gitmo and Moving Prisoners to U.S., GALLUP (June 3, 2009), http://tinyurl.com/3pxzk9k. See also GARCIA ET AL., supra note 6, at 3–5 (discussing congressional opposition to President Obama’s policies). 11. See MICHAEL JOHN GARCIA, CONG. RESEARCH SERV., R40754, GUANTANAMO DETENTION CENTER: LEGISLATIVE ACTIVITY IN THE 111TH CONGRESS 3–4 (Jan. 13, 2011) (identifying laws with restrictions on Guantánamo Bay releases and transfers). The restrictions appeared both in legislation authorizing and appropriating funds. Id. Whether funding 2285 DO NOT DELETE 12/20/2011 3:44 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2011 President to transfer detainees to the United States “for the purposes of prosecuting such individual, or detaining such individual during legal proceedings.”12 Despite this allowance, the laws contained some restrictions on transfers for the purpose of prosecution. For example, the first law to impose these restrictions only allowed the President to transfer detainees to the United States forty-five days after submitting to Congress a classified “plan” for each detainee.13 The plan had to include a national security risk assessment, steps to mitigate that risk, a cost analysis, and a statement of the “legal rationale and associated
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